The Brookhaven leader. [volume] (Brookhaven, Miss.) 1883-1891, 1887-01-13
THE LIEN LAW.
Hon. ]. II. McCool Discusses the
Legal Effect of Its Repeal.


Knsciusko Star, Hon. J. +. McCoul
has favored that paper with the fol
lowing letter, regarding the legal Gf-
lect OF thc repeal Of the Lien Law:
Editor Of the Star:
Since the repeal Of Section 1889 OF
the Code of1SSO, which authorized
the giving of mortgages on all agri-
cultural products to be grown with
in fifteen months after the mortgage
was given, there is some diversity
Of opinion as TO the rule Of the com.
mon law on kindred subjects. All
property, real or personal, corporal
or Incorporeal, movable or immov-
able, that is capable Of an absolute
sale may he the subject of a mort
gage at common law, provided it
belongs 10 the mortgagor at the
time.
There is a great conflict, but the
weight of common law authority
holds, that reversions, rcmainders,
rents, franchises, chooses in action
and mere possibilities coupled with
an interest, can be mortgaged.
A naked expectancy, like that OF
an heir, a flowing stream Of water,
which may travese ones farm and
a right of presumption and improve.
ments on the public domain are cx-
amples of what can not be mort
gagged.
Where there is an actual interest
or ownership in the subject, being a
present existing property, whether
limited or absolute, furnishing the
foundation for the contract out Of
which the future acquisition is the
product, then such contingent inter
ests, such as crops 10 be grown, may
be mortgaged, the lien attaching as
soon rs the thing comes into exist
ence. Hence the owners Of land
may mortgage their crops "to be
grown" long before they are plant
ed, and the moment they grow into
physical existence, the lien on them
attaches and this acquisition OF
property and the attaching of the
mortgage lien are contemporary
eOus.
The lien attaches when the crop
begins TO grow. Persons who have
leased or rented q tract of land for
only one year, may execute valid
equitable mortgage on their crops,
TO be grown thereon, even before
they are planted. The law books
abound in examples of this principle
of the common law mortgage.
The owner OF sheep may mortgage
the wool to be grown thereon, or the
annual interest on his money, or the
milk of the COW for the next year,
and there may be q valid NOR, gage
Of the fruit the orchard is expected
to produce. and the future accre-
lions and rent of property and the
young of animals.
A ship owner may pledge and
hypothecate for advances the oil
and head matter to be taken in q
whaling voyage. The profits Of the
public mill or gin, and the pikcagc
of q toll, turnpike or bridge may he
mortgaged, and hence any owner OF
land, whether in fee, for life, for
years, or for any leasehold interest
not less than one year, can mort
gage the rents, profits and crops =,
growing out of said land, but the
mortgage Of contingencies and OK
pectance as on crop To he grown,
accompanied by ownership of the
land is void at law, and only oper-
alive in equity. In the mortgage of
n crop in this class Of cases, before
it has tangible and physical exis-
tencc, the instrument of mortgage is
incapable OF comforting legal title to
the crop or other thing on the mort
gage or trustee, SO as to authorize
power of sale, in default OF payment,
as is the usual rule, and the legal
title or ownership still remains in
the debtor or morgagor, there only
being an equitable lien on the crop
or thing. capable of being enforced
in court of equity.
Where there is a mortgage of ia,
ture acquisitions under the common
law, no legal title passes to the
mortgage or to his trustee for his
benefit, and to enforce the lien, when
there has been default, resort must
be had to the courts of equity.
whose jurisdiction is ample to pro
tect The rights of both creditors and
debtors, and to prevent removal,
concealment or conversion, as well
as to prevent sacrifice of the mort
gage property by being sold at an
inadequate price.
The owners OF land can only give
equit able mortgages on crops, etc.,
to be grown in future, yet so soon
as they have a physical existence,
they are subject TO legal mortgage,
wherein there is conveyed the legal
title, which vest absolutely in de-
fault of payment, as provided by the
terms of the mortgage.
Hence, the wiser course is to wait
until the crop is up and growing.
and take the legal mortgage. All
laborers, employees and all persons
contributing their industry to the
production of agricultural products,
will be unable 10 mortgage their